McKinney v. Hubbard et al

Filing 22

NOTICE and ORDER Revoking In Forma Pauperis Status signed by Magistrate Judge Barbara A. McAuliffe on 01/26/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY MCKINNEY,

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Plaintiff,

Case No. 1:09-cv-02096-BAM (PC)
NOTICE AND ORDER REVOKING IN
FORMA PAUPERIS STATUS

v.
(ECF No. 21)
S. HUBBARD, et al.,

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Defendants.

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By notice entered January 23, 2017, the United States Court of Appeals for the Ninth

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Circuit referred this matter to the District Court for the limited purpose of determining whether in

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forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken

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in bad faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 302 F.3d 1091,

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1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where the district court

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finds the appeal to be frivolous).

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Permitting litigants to proceed in forma pauperis is a privilege, not a right. Franklin v.

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Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); Williams v. Field, 394 F.2d 329, 332 (9th Cir.

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1968), cert. denied, 393 U.S. 891 (1968); Williams v. Marshall, 795 F.Supp. 978, 978-79 (N.D.

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Cal. 1992). A federal court may dismiss a claim filed in forma pauperis before service if it is

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satisfied that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2); see Sully v. Lungren,

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842 F.Supp. 1230, 1231 (N.D. Cal. 1994). If a plaintiff with in forma pauperis status brings a case

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without arguable substance in law and fact, the court may declare the case frivolous. Franklin,

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745 F.2d at 1227.
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On October 18, 2011, the Magistrate Judge dismissed Plaintiff’s complaint with prejudice

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for failure to state a claim and entered judgment. (ECF Nos. 13, 14.) On June 20, 2016, Plaintiff

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filed a motion for relief from the Court’s October 18, 2011 order. (ECF No. 16.) On December

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20, 2016, the Court issued an order denying Plaintiff’s motion as untimely. (ECF No. 17.)

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Plaintiff now appeals the Court’s order denying his motion. (ECF No. 18.)

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Plaintiff failed to file a motion for relief within the time periods prescribed in Federal Rule

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of Civil Procedure 60(b). Motions made under Rule 60(b)(1)-(3) must be filed no more than one

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year after the entry of the judgment or order. Fed. R. Civ. P. 60(c)(1). All other motions under

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Rule 60(b) must be made within a “reasonable time.” Id. Plaintiff did not file his motion for relief

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from the Court’s October 18, 2011 order until almost five years after the entry of the judgment,

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well beyond the time limits permitted under Rule 60(c)(1). Plaintiff did not even inquire about the

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status of his case until more than four years had passed following the entry of the judgment in his

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case. Plaintiff’s appeal of the Court’s order, which resulted from Plaintiff’s own inaction, is

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therefore frivolous.

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Accordingly, the Court HEREBY ORDERS that:

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1. This matter is declared frivolous;

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2. In accordance with 28 U.S.C. § 1915(a)(3), Plaintiff is not entitled to proceed in forma

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pauperis in Appeal No. 17-15098, filed January 12, 2017;
3. As required by Federal Rules of Appellate Procedure 24(a)(4), this Order serves as

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notice to the parties and the United States Court of Appeals for the Ninth Circuit of the

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finding that Plaintiff is not entitled to proceed in forma pauperis for this appeal; and

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4. The Clerk of the Court is directed to serve a copy of this Order on Plaintiff and the

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United States Court of Appeals for the Ninth Circuit.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 26, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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